190 F.3d 71 (2nd Cir.

1999)

UNITED STATES OF AMERICA, Appellee,

v.
JABRIL SHAREEF, Defendant-Appellant.
Docket No. 98-1606
August Term, 1998

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT
Argued: June 28, 1999
Decided: September 01, 1999

Appeal from a judgment of the United States District Court for the
Western District of New York, convicting defendant of mail fraud, Hobbs
Act, and conspiracy offenses in connection with subcontractor's
underpayment of wages, 18 U.S.C. 1341, 1951, 371.
Affirmed. [Copyrighted Material Omitted]
MARTIN J. LITTLEFIELD, Assistant United States Attorney, Buffalo,
New York (Denise E. O'Donnell, United States Attorney for the Western
District of New York, Buffalo, New York, on the brief), for Appellee.
VINCENT E. DOYLE III, Buffalo, New York (Connors & Vilardo,
Buffalo, New York on the brief), for Defendant-Appellant.
Before: KEARSE, STRAUB, and POOLER, Circuit Judges.
KEARSE, Circuit Judge:

Defendant Jabril Shareef appeals from a judgment entered in the United States
District Court for the Western District of New York following a jury trial
before William M. Skretny, Judge, convicting him of extortion and attempted
extortion, in violation of 18 U.S.C. 1951 (1994) (the "Hobbs Act"), mail fraud,
in violation of 18 U.S.C. 1341 (1994), and conspiracy to commit mail fraud, in
violation of 18 U.S.C. 371 (1994). Shareef was sentenced principally to 30
months' imprisonment, to be followed by a three-year term of supervised

release. On appeal, he contends principally that the government failed to

present sufficient evidence to prove the interstate commerce element of a
Hobbs Act offense. He also contends that he received constitutionally
ineffective assistance from his trial counsel, that he was denied a fair trial by
reason of prosecutorial misconduct, and that his sentence was improperly
enhanced on the ground that he committed perjury at trial. For the reasons that
follow, we find no basis for reversal.
I. BACKGROUND
2

The present prosecution arose out of a 1991-92 contract for the interior
demolition of city buildings in Buffalo, New York (the "Buffalo project"). The
contract was put out for bids by the State of New York in cooperation with the
Buffalo Municipal Housing Authority. Bidders were required to ensure, inter
alia, that all employees would be paid New York's "Prevailing Wage Rate." By
statute, New York requires contractors on public work projects to pay
"laborers, workmen or mechanics" at least the prevailing rate of wages. N.Y.
Labor L. 220(3) (McKinney Supp. 1999). The prevailing rate of wages is "the
rate of wage paid in the locality ... by virtue of collective bargaining agreements
between bona fide labor organizations and employers of the private sector ... in
the same trade or occupation." N.Y. Labor L. 220(5)(a). The contract was
awarded to Integrated Waste Special Services ("IWSS") as general contractor;
IWSS subcontracted part of the work to a business owned by Shareef. Shareef
was informed that employees must be paid the Prevailing Wage Rate.

Shareef and his business associate James Nelson, who supervised Shareef's
work crews on the Buffalo project, were charged with failing to pay Shareef's
laborers the Prevailing Wage Rate, by means of conduct that violated, inter
alia, the Hobbs Act, 18 U.S.C. 1951. The Hobbs Act substantive count of the
indictment alleged that Shareef and Nelson

did knowingly, willfully and unlawfully obstruct, delay and affect interstate
commerce and the movement of articles and commodities in interstate
commerce by extortion, and did attempt to do so, in that the defendants did
unlawfully take and obtain property, namely money, from persons, namely
employee laborers, with their consent, such consent being induced by the
wrongful use of fear of economic loss.

The evidence at the joint trial of Shareef and Nelson, taken in the light most
favorable to the government, included testimony by Shareef's office manager
and by more than a dozen of his laborers on the Buffalo project that instead of

paying each laborer the required gross wage of $21.89 per hour, Shareef paid
them $6-to-$10 per hour. Shareef forced the laborers to endorse their paychecks
without reading the amounts, and he then paid them in cash at the lower rates.
When employees complained to Shareef that they were being underpaid, he
threatened to fire them.
6

Shareef, in his own defense, testified, inter alia, that he had believed everyone
on the Buffalo project was being paid $21.89 per hour; that all of the
employees were paid by check and no one received cash; and that no laborer
ever complained to him about being underpaid. Nelson also testified in his own
defense; he denied any knowing involvement in the extortion and fraud. On
cross-examination by the government, Nelson admitted having stated to law
enforcement agents that he had participated in the fraud and that Shareef had
devised the fraudulent scheme; Nelson testified that that statement was true.

The jury convicted both defendants on all counts, to wit, mail fraud, Hobbs Act
extortion, and conspiracy to commit those offenses. Shareef was sentenced as
indicated above, and this appeal followed.
II. DISCUSSION

On appeal, Shareef challenges the sufficiency of the evidence to support his

conviction of Hobbs Act extortion, contending that the government failed to
prove the requisite effect on interstate commerce. Shareef also contends that his
trial counsel rendered ineffective assistance by not moving for a severance of
his trial from that of Nelson; that the Assistant United States Attorney
("AUSA") deprived him of a fair trial by posing improper questions to him on
cross-examination and making unfair arguments in summation; and that the
district court improperly enhanced his sentence by increasing his offense level
on the ground that his trial testimony was perjurious. We reject all of these
contentions.

A. Sufficiency of the Evidence of Interstate Commerce

10

Shareef advances several contentions in support of his challenge to the

sufficiency of the evidence to establish the interstate commerce element of the
substantive Hobbs Act charge against him. He contends principally (a) that
because the indictment "charged that Shareef affected interstate commerce by
obtaining money from the laborers," the government was required to prove
"that it was the theft of money from the laborers that affected interstate
commerce" (Shareef brief on appeal at 16), but that there was no proof of such

a direct effect, for Shareef's "company and all of its employees were New York
State residents," and "[n]one of the laborers, who were the victims of the
alleged extortion, testified that they had any connection to interstate commerce"
(id. at 9); (b) that the government could not be permitted to satisfy its burden by
proving instead an impact on IWSS because, Shareef argues, that proof would
constitute an impermissible variance from the indictment; and (c) that, in any
event, the evidence as to the impact on IWSS was insufficient because no
"actual[ e]ffect" on IWSS was shown (id. at 10; see also id. at 17 ("IWSS [did
not] offer any evidence of any ... injury that it, in fact, suffered")), and a
potential effect is, he contends, insufficient to support a substantive Hobbs Act
charge. We reject these contentions, which are based on misconceptions of
Hobbs Act principles.
11

The Hobbs Act, to the extent pertinent here, makes it unlawful "in any way or
degree" to "obstruct[], delay[], or affect[] commerce or the movement of any
article or commodity in commerce, by robbery or extortion" or to "attempt[] or
conspire[] so to do." 18 U.S.C. 1951(a). As recently discussed by this Court in
United States v. Arena, 180 F.3d 380 (2d Cir. Jun. 7, 1999) ("Arena"), although
a Hobbs Act conviction cannot be sustained if the government failed to prove
that "'commerce [wa]s affected,'" Arena, 180 F.3d at 389 (quoting Stirone v.
United States, 361 U.S. 212, 218 (1960)), "it is well established that the burden
of proving such a nexus is 'de minimis,'" Arena, 180 F.3d at 389 (quoting
United States v. Farrish, 122 F.3d 146, 148 (2d Cir. 1997), cert. denied, 118 S.
Ct. 1056 (1998)). "'Even a potential or subtle effect on commerce will suffice.'"
Arena, 1999 180 F.3d at 389 (quoting United States v. Angelilli, 660 F.2d 23,
35 (2d Cir. 1981), cert. denied, 455 U.S. 945 (1982)) (emphasis ours); see, e.g.,
Jund v. Town of Hempstead, 941 F.2d 1271, 1285 (2d Cir. 1991) ("any
interference with or effect upon interstate commerce, whether slight, subtle or
even potential ... is sufficient to uphold a prosecution under the Hobbs Act").

12

Although Shareef argues that proof of a potential effect on commerce suffices

only with respect to a charge of Hobbs Act conspiracy, not a charge of
substantive violation, he is mistaken. We have applied the above principles in
upholding convictions not only for conspiracy, see, e.g., Arena, 180 F.3d at
389-90, but also for Hobbs Act substantive offenses, see, e.g., id.; United States
v. Farrish, 122 F.3d at 148; United States v. Angelilli, 660 F.2d at 35.
Accordingly, Shareef's contention that only an actual, not a potential, effect on
commerce can suffice to sustain a substantive Hobbs Act charge is squarely
contradicted by our precedents.

13

Further, "[w]e have never held that an indictment alleging a violation of the
Hobbs Act must specify the precise nature of the effect upon interstate

commerce that the government intends to prove at trial ...." United States v.
Alfonso, 143 F.3d 772, 776 (2d Cir. 1998). Nor need the government prove that
the impact on interstate commerce was intentional, see, e.g., United States v.
Daley, 564 F.2d 645, 649 (2d Cir. 1977) (proof of intent to interfere with
interstate commerce unnecessary where such interference was one of the
natural effects of the offense), cert. denied, 435 U.S. 933 (1978), or that the
effect on commerce was direct rather than indirect, see, e.g., United States v.
Farrish, 122 F.3d at 149 (interstate commerce element proven by evidence that
robbed garage, located near interstate portals, "regularly served cars bearing
out-of-state license plates," permitting inference that the robberies might
discourage out-of-state business); United States v. Jones, 30 F.3d 276, 284-85
(2d Cir.) (effect on commerce is sufficient "even though the effect is not
immediate or direct or significant, but instead is postponed, indirect and
slight"), cert. denied, 513 U.S. 1028 (1994); see also United States v. Millet,
123 F.3d 268, 274 (5th Cir. 1997) ("When an indictment under the Hobbs Act
is drawn in general terms, a conviction may rest on a showing that commerce
of one kind or another has been burdened. . . . It follows that when the
indictment is drawn generally, the government may offer proof that the act
either directly or indirectly affected interstate commerce."), cert. denied, 118 S.
Ct. 1306 (1998).
14

In the present case, as quoted in Part I above, the indictment specified the
conduct in which Shareef was alleged to have engaged, to wit, extorting money
from his laborers; and it alleged generally that that conduct obstructed, delayed,
and affected interstate commerce. The indictment did not purport to specify the
nature of the effect on commerce. Thus, the government was free to show that
Shareef's extortionate underpayments to the laborers had the potential for
impeding either activities of the laborers in interstate commerce or IWSS's
operations in interstate commerce.

15

Finally, we reject Shareef's suggestion that the government's evidence was

insufficient to show even a potential effect on IWSS's interstate business. In
reviewing a challenge to the sufficiency of the evidence to support a conviction,
we "view the evidence in the light most favorable to the government, drawing
all inferences in the government's favor and deferring to the jury's assessments
of the witnesses' credibility." United States v. Allah, 130 F.3d 33, 45 (2d Cir.
1997), cert. denied, 118 S. Ct. 2347 (1998).

16

At trial, James F. Williams, a vice president of IWSS and the chairman and
chief executive officer of IWSS's parent, testified that during the period of work
on the Buffalo project, IWSS, which had an office in Houston, Texas, was
engaged in several other jobs outside of New York State; he authenticated

IWSS documents reflecting, inter alia, its business with municipal agencies in
Ohio and Texas. Williams testified that with respect to the Buffalo project,
IWSS had ultimate responsibility for the proper payment of all employees; that
Shareef's underpayments to the laborers had resulted in allegations by the New
York State Department of Labor not only against Shareef's company but also
against IWSS; that the Department of Labor had 'moved against' IWSS; and
that the allegations against IWSS could have hindered IWSS's ability to, inter
alia, obtain payment and performance bonds and to be prequalified for other
out-of-state contracts. Viewed in the light most favorable to the government,
therefore, this evidence was sufficient to show that Shareef's conduct had the
potential effect of diminishing IWSS's interstate business.
17

In sum, where there is evidence that (a) the general contractor was ultimately
responsible for ensuring that contract laborers, even those hired by a
subcontractor, were paid in accordance with law, (b) the subcontractor extorted
from his laborers part of their proper wages, thereby unlawfully underpaying
them, and (c) the ability of the general contractor to conduct its interstate
business was jeopardized by official allegations, and the ensuing investigation,
against it resulting from the subcontractor's extortionate underpayment of
wages, that evidence is sufficient to satisfy the interstate commerce element of
the Hobbs Act.
B. Other Contentions
1. The Performance of Counsel

18

To establish a claim of ineffective assistance of counsel, a defendant must show

that his attorney's performance "fell below an objective standard of
reasonableness," and that there is "a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been
different." Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). Shareef
contends that he received ineffective assistance of trial counsel principally
because his attorney failed to review a pretrial statement by Nelson, despite its
inclusion in a pretrial list of documents given to defense counsel by the
government, and hence failed to move for a severance of his trial from that of
Nelson. Shareef contends that his and Nelson's defenses were sharply
antagonistic, and, citing Richardson v. Marsh, 481 U.S. 200 (1987), and Bruton
v. United States, 391 U.S. 123 (1968), he argues that the joint trial "permitted
the jury considering charges against Shareef to hear the testimony of Nelson,
particularly as to the pre-trial statements made by [Nelson] to the government
agent. These statements, incriminating Shareef, would not have been admissible
against [Shareef] at a separate trial." (Shareef brief on appeal at 28.) Although

we do not suggest that making tactical decisions without rudimentary

preparation constitutes reasonable performance by counsel, we conclude for
several reasons that Shareef cannot show that had his attorney moved for a
severance the result would have been different.
19

First, in the federal system, there is a preference for the joint trial of defendants
indicted together; thus, the district court should grant a severance motion only
if there is a serious risk that a joint trial would compromise a specific trial right
of the moving defendant or prevent the jury from making a reliable judgment
about guilt or innocence. See Zafiro v. United States, 506 U.S. 534, 537, 539
(1993). A severance need not be granted simply because codefendants have
made incriminating statements.

20

It would impair both the efficiency and the fairness of the criminal justice
system to require, in ... cases of joint crimes where incriminating statements
exist, that prosecutors bring separate proceedings, presenting the same evidence
again and again, requiring victims and witnesses to repeat the inconvenience
(and sometimes trauma) of testifying, and randomly favoring the last-tried
defendants who have the advantage of knowing the prosecution's case
beforehand. Joint trials generally serve the interests of justice by avoiding
inconsistent verdicts and enabling more accurate assessment of relative
culpability .... Even apart from these tactical considerations, joint trials
generally serve the interests of justice by avoiding the scandal and inequity of
inconsistent verdicts.

21

Richardson v. Marsh, 481 U.S. at 210. Here, the defenses asserted by Shareef
and Nelson were not necessarily irreconcilable. Each simply denied knowing
that the laborers were being underpaid. In theory, therefore, it was possible that
neither man was involved and that the underpayments were fraudulently
perpetrated on the laborers by some other official in Shareef's company who
had payroll responsibilities. Further, to the extent that an out-of-court
inadmissible statement by one supposedly unknowing codefendant accused the
other of being the culprit, that accusation could have been redacted for a joint
trial. See generally id. at 208-09. Accordingly, we see no likelihood that a
severance motion would have been granted.

22

Further, Shareef's premise that Nelson's "statements, incriminating Shareef,

would not have been admissible against [Shareef] at a separate trial" (Shareef
brief on appeal at 28), is unsound. The Bruton and Richardson cases on which
Shareef relies concerned hearsay declarations of codefendants who chose not to
testify at trial. The flaw in those circumstances, of course, is that the defendant
about whom the codefendant has made a statement cannot cross-examine the

codefendant. In the present case, however, Nelson did testify at trial and
therefore was available for cross-examination by Shareef. Testimony by Nelson
that Shareef devised the underpayment scheme was obviously relevant, and it
plainly would have been admissible in a trial of Shareef alone. Further, given
the facts that Nelson testified at the joint trial though he could not have been
compelled to do so, and that on cross-examination by the government he
confirmed the truth of his prior statement inculpating Shareef, we cannot infer
that Nelson would have refused to testify against Shareef if Shareef had been
tried separately. Accordingly, we see no basis for inferring that any of the
testimony before the jury at the joint trial would not have been forthcoming at a
trial of Shareef alone.
23

Finally, we note that even if Nelson's testimony had not been before the jury,
the other evidence against Shareef, which included the testimony of at least 14
laborers and of Shareef's office manager who had payroll responsibilities and
acted on Shareef's instructions to facilitate and conceal the underpayments, was
overwhelming. We conclude that Shareef's claim of ineffective assistance of
counsel for failure to request a severance, whether that failure be viewed in
isolation or in combination with the other deficiencies alleged by Shareef on
this appeal, provides no basis for a new trial.
2. The Conduct of the Prosecutor

24

Shareef also contends that he is entitled to a new trial because the AUSA asked
him improper questions on cross-examination and made unfair arguments in
summation. We are unpersuaded.

25

Prosecutorial misconduct is a ground for reversal only if it causes the defendant

"substantial prejudice," United States v. LaMorte, 950 F.2d 80, 83 (2d Cir.
1991), cert. denied, 504 U.S. 909 (1992), by "so infect[ing] the trial with
unfairness as to make the resulting conviction a denial of due process," Darden
v. Wainwright, 477 U.S. 168, 181 (1986) (internal quotation marks omitted).
Remarks of the prosecutor in summation do not amount to a denial of due
process unless they constitute "egregious misconduct." Donnelly v.
DeChristoforo, 416 U.S. 637, 647 (1974). In assessing whether the comments
complained of meet this test, we consider "the severity of the misconduct, the
measures adopted to cure it, and the certainty of conviction in the absence of
the misconduct." United States v. Melendez, 57 F.3d 238, 241 (2d Cir. 1995)
(summation); see also United States v. McCarthy, 54 F.3d 51, 55 (2d Cir.)
(same standard for improper questions in cross-examination), cert. denied, 516
U.S. 880 (1995). Even where a prosecutor's argument was clearly
impermissible, we have been reluctant to reverse where the transgression was

isolated, the trial court took swift and clear steps to correct the implication of
the argument, and the evidence against the defendant was strong. See, e.g.,
United States v. Cruz, 797 F.2d 90, 93 n.1 (2d Cir. 1986) (in light of the record,
the argument as a whole, and the curative instructions, prosecutor's statement
that "[t]he defense . . . has to convince you," although improper, was held not to
require reversal (internal quotation marks omitted)).
26

In the present case, within this framework, we see no basis for reversal. Our
review of the record does not persuade us that the prosecutor's comments
inappropriately disparaged Shareef's credibility or misrepresented the case to
the jury. Although the deportment of the AUSA seems on occasion to have left
something to be desired, the trial court promptly admonished him in those
instances. Further, although the AUSA's asking Shareef whether he could
produce certain checks, and the AUSA's summation "challenge" to "defense
counsel to explain ... how the off-the-book employees got paid" were improper
insofar as they suggested that Shareef had any burden to come forward with
evidence in his defense, these transgressions were isolated; the trial court
upheld Shareef's objections, and the court later instructed the jury clearly and
repeatedly that the government bore the burden of proof and that that burden
"never" shifted. In any event, the evidence against Shareef was sufficiently
strong that, to the extent that there was any prosecutorial misconduct, we
cannot conclude that it caused Shareef prejudice or warrants a new trial.

27

We also reject Shareef's contention that he was denied a fair trial by the
AUSA's argument to the jury that, if it believed Shareef's testimony, it had to
conclude that other witnesses were lying. It is of course inappropriate for the
prosecutor to make a summation that is inflammatory. See, e.g., United States
v. Gonzalez, 488 F.2d 833, 836 (2d Cir. 1973) (reversing because of
"combination of" error in the instructions, and inflammatory summation
arguments that "you have to be born yesterday" to believe appellant's defense
and that the defense is "an insult to your intelligence" (internal quotation marks
omitted)); United States v. Drummond, 481 F.2d 62, 64 (2d Cir. 1973)
(condemning argument that defendant's "testimony is so riddled with lies it
insults the intelligence of 14 intelligent people sitting on the jury" and
reversing because of that error in combination with others (internal quotation
marks omitted)). But while we have reversed because of a prosecutor's
argument "that, if the defendant is innocent, government agents must be lying,"
United States v. Richter, 826 F.2d 206, 209 (2d Cir. 1987), we have noted that
it is not ordinarily improper for the prosecution to make temperate use of forms
of the word "lie" to highlight evidence directly conflicting with the defense's
testimony, or "to characterize disputed testimony" where credibility was clearly
an issue, particularly where "the prosecutor tied to the pertinent evidence of

record" each instance in which the defendant supposedly "lied," United States
v. Peterson, 808 F.2d 969, 977 (2d Cir. 1987) (reversing on other grounds).
Thus, in United States v. Durrani, 835 F.2d 410 (2d Cir. 1987), we found no
misconduct in prosecutor's stating, "if Mr. Durrani is telling you the truth in his
most recent statement from the witness stand, Mr. Doyle is lying, Mr.
Spreeuwenberg is lying, Mr. Moosa is lying, the bank records are lying, Mr.
Arruda is lying about the statement, C.I.A. is lying to you, the National
Security Council is lying to you, Mr. Newborn is lying to you." Id. at 424
(internal quotation marks omitted).
28

In his summation in the present case, the AUSA seriatim reviewed the pertinent
testimony of Shareef's office manager and several underpaid laborers,
juxtaposed each witness's testimony with contrary testimony by Shareef, and
stated to the jury, "If you believe Shareef," the (named) witness "had to lie."
We are unpersuaded that this argument constituted misconduct.
3. The Enhancement for Perjury

29

Finally, we find no merit in Shareef's challenge to his sentence. Section 3C1.1

of the Sentencing Guidelines ("Guidelines") provides for an increase in a
defendant's offense level if the sentencing court finds that the defendant
willfully obstructed or attempted to obstruct justice. See, e.g., Guidelines
3C1.1 Application Notes 3(b) and (f) ("committing ... perjury" or "providing
materially false information to a judge"); see also United States v. Dunnigan,
507 U.S. 87, 98 (1993) (when the district court has "proper[ly] determin[ed]
that the accused has committed perjury at trial, an enhancement of sentence is
required").

30

In the present case, Shareef gave detailed testimony at trial that was directly
and irreconcilably contradicted by the testimony of at least 15 witnesses. The
district court found that "there is no basis in the record for me to find that
defendant's false testimony resulted from confusion, mistake, or faulty memory,
even evaluating those statements in the light most favorable to him." The
obstruction of justice enhancement was proper.

CONCLUSION
31

We have considered all of Shareef's contentions on this appeal and have found
in them no basis for reversal. The judgment of conviction is affirmed.